On May 4, 2017, Division Three of the Court of Appeals of Washington affirmed the partial summary judgment and defense verdict obtained by BB&L partner Jennifer Moore in Pitts v. Inland Imaging, LLC. The underlying trial arose from a claim of medical malpractice involving a monochorionic[2] twin pregnancy. The Court of Appeals held that summary dismissal of Plaintiffs’ loss of a chance claim was appropriate and upheld the jury’s defense verdict on the remaining claims. One of the primary trial court errors alleged by Plaintiffs related to the exclusion of rebuttal witnesses without having addressed the Burnet factors, which the Court of Appeals found did not apply in this instance.

The decision represents a distinct win for the defense bar and BB&L’s client. Moreover, while the opinion is unpublished, recent amendment to Washington’s General Rule 14.1 now permits citation to new unpublished opinions. This will allow Pitts to be cited in future cases where Lost Chance and Burnet arise.

What Lost Chance Doesn’t Cover

In addition to standard malpractice claims, Plaintiffs asserted a claim for loss of a chance after an expert testified that early diagnosis of the twins’ high-risk pregnancy would have resulted in a 90 percent chance of a better outcome. In a pretrial motion to dismiss, BB&L argued that loss of a chance was inappropriate for two reasons: (1) claims of lost chance are only applicable where the degree of the alleged loss is less than 50 percent, and (2) a claim of lost chance could not be maintained where Plaintiffs alleged the underlying injury arose not from a disease but from actual negligence of a provider.

After taking the motion to dismiss under advisement, the trial court held that loss of a chance need not be a separately pled claim, but then refused to instruct the jury regarding loss of a chance because the alleged loss exceeded 50 percent and was subject to the usual negligence standards.[3] Following defense verdict on the remaining claims, Plaintiffs appealed, alleging that the trial court erred by dismissing their claim.

In another step towards clarifying the rapidly evolving legal theory of “loss of a chance”, the Court of Appeals affirmed the trial court’s dismissal and reiterated the 2013 Court of Appeals holding in Dormaier v. Columbia Basin Anesthesia, PLLC.[4] In Dormaier, the Court of Appeals found that “a lost chance claim only applies when the plaintiff already has no more than a 50 percent chance of having a successful recovery or survival from the underlying problem.”[5] This restriction should help to limit the application of loss of a chance to a limited subset of medical malpractice cases.

Additionally, the Court of Appeals held that an alternative ground for dismissal existed in Pitts:

[A]ppellants based their lost chance of survival claim on the alleged negligence of Inland. The Washington Supreme Court’s decision in Volk v. Demeerleer, 187 Wn.2d 241, 279, 386 P.3d 254 (2016), authoritatively rejected that approach. There is no lost chance claim when the injury is caused by medical negligence.[6]

The Court of Appeals relied heavily upon the Supreme Court’s recent decision in Volk, which helped to elucidate the requirements for a loss of a chance claim. While the Court clearly held that loss of a chance “is inapplicable if the plaintiff is alleging that the defendant’s negligence actually caused the unfavorable outcome”, Pitts is one of the first lower court decisions to apply this principle. As such, Pitts can now act as a guidepost for both defendants and courts seeking to defeat an allegation of loss of a chance.

Burnet Doesn’t Always Apply

In addition to alleging error for dismissal of their loss of a chance claim, Plaintiffs also alleged error based upon the trial court’s rulings on multiple issues at trial. The Court of Appeals affirmed the trial court on all issues, citing the judge’s broad authority to manage trial.[7] One of those issues related to the application of the Burnet test for the exclusion of rebuttal testimony.

In Burnet, the Supreme Court found that exclusion evidence as a discovery sanction required three specific findings by the trial court.[8]

If a trial court imposes one of the more ‘harsher remedies’ under CR 37(b), then the record must clearly show (1) one party willfully or deliberately violated the discovery rules and orders, (2) the opposing party was substantially prejudiced in its ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction would have sufficed.[9]

In Pitts, Plaintiffs argued that before excluding rebuttal testimony the trial court should have considered the Burnet factors. In denying the alleged error, the Court of Appeals held that Burnet only applies where exclusion is considered as a sanction:

Thus, Dr. Finberg was not excluded from testifying as a sanction for the late disclosure of his identity. Instead, his testimony was limited to its stated purpose – rebuttal. He was not permitted to testify about topics that had not been raised by the defense since there would be nothing to rebut in that instance. The trial court had very tenable reasons for limiting Dr. Finberg to proper rebuttal testimony.[10]

By refusing to apply Burnet within the context of rebuttal testimony, the Court of Appeals has helped to limit the expansion of a doctrine that substantially restricts the trial court’s ability to narrow the scope of permissible testimony at trial. This is a distinct win for the Defense bar, which frequently faces attempts by plaintiffs to shoehorn inappropriate testimony into rebuttal.

If you have questions about this client alert or related topics, please feel free to contact either of the attorneys below: